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LEE v. REGAL CRUISES

February 7, 1997

MILLICENT LEE, et ano., Plaintiffs, against REGAL CRUISES, et ano., Defendants., -against- MILAN KUTANOVSKI, Third Party Defendant.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiffs, whose case previously was dismissed on a motion for summary judgment, *fn1" find themselves in peril of having their appeal dismissed for lack of jurisdiction and seek this Court's aid. Regrettably, the Court lacks the power to assist them.

 Facts

 The Original Dismissal and Appeal

 Millicent Lee and her husband brought this action against the owners of a cruise ship to recover for an injury to Mrs. Lee's left knee allegedly sustained in circumstances rendering the owners liable. The owners impleaded the treating physician, and the plaintiffs subsequently asserted a direct claim against him. In a memorandum opinion dated February 20, 1996 and amended the following day, this Court granted defendants' motion for summary judgment dismissing the complaint and dismissed plaintiffs' direct claim against the third party defendant for lack of subject matter jurisdiction. Judgment was entered in favor of defendants and the third party defendant on March 6, 1996. On March 20, 1996, plaintiffs filed a notice of appeal.

 The Preargument Conference and Withdrawal of the First Appeal

 On April 26, 1996, the parties attended a preargument conference in the Court of Appeals. Staff counsel apparently was under the impression that the judgment appealed from did not dispose of the third party claims asserted by the defendants against the third party defendant and, in consequence, was not final. At his suggestion, the parties entered into a stipulation withdrawing plaintiffs' appeal. The stipulation, which was so ordered for the Court by the Clerk on April 29, 1996, provided that "this stipulation shall not preclude any appeal from an amended final judgment, i.e., adjudicating all the claims and the rights and liabilities of all the parties, including, specifically, Regal's claim vs Kutanovski, or granting certification, FRCP 54(b)."

 The Amendment of the Judgment

 On May 29, 1996, plaintiffs' counsel wrote to this Court and requested that the order appealed from "be amended to address and, presumably, dismiss, the third party claims of defendants and third party plaintiffs, Regal Cruises, Ltd. and International Shipping Partners, against third party defendant, Milan Kutanovsky."

 On June 3, 1996, this Court entered an order in response to plaintiffs' letter. It noted that the third party claim was derivative of plaintiffs' claim against the owners. (Order, June 3, 1996, at 2) ("When the third-party complaint [is] based on a theory of indemnification or contribution, and when [the plaintiff's] cause of action [is] dismissed with prejudice, any claim based on indemnification or contribution necessarily [falls] by the wayside.") (Id. at 2-3) (quoting Holcomb v. Allis-Chalmers Corp., 774 F.2d 398, 400 (10th Cir. 1985)). The Court therefore said that dismissal of plaintiffs' claims against defendants therefore effectively dismissed the third-party defendant from the case. Nevertheless, it directed the Clerk to amend the judgment previously entered to clarify that the Court's prior order dismissed the third-party complaint. The amended judgment was signed on June 7 and was entered on June 12, 1996.

 The Second Appeal

 On June 7, 1996, plaintiffs' counsel wrote to the Court of Appeals and requested that "all necessary steps . . . be taken to restore the . . . case" to the calendar. (Bloom Aff., Sept. 9, 1996, Ex. A) On June 12, 1996, the Court of Appeals sent plaintiffs' counsel a letter enclosing a copy of the judgment and containing instructions as to how to file an appeal, although plaintiffs' counsel denies having received it. In the following days, plaintiffs' counsel received a call from someone in the Second Circuit Clerk's office ...


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